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Qualification of jurors summoned on special venire.-Formerly they were only required to be freeholders. The Code, 1739; State v. Carland, 90-668; State v. Kilgore, 93-533; State v. Starnes, 94-973. But now, by ch. 53, acts 1887, they are liable to challenge on all four of the grounds (above given) assignable against a tales juror.

Sec. 406. Names of jurors to be called before empaneled ; right of challenge. R. C., c. 31, s. 335. 1796, c. 452, s. 2. 1812, c. 833.

The clerk, before a jury shall be empaneled to try the issues in any civil suit, shall read over the names of the jury upon the panel in the presence and hearing of the parties or their counsel; and the parties, or their counsel for them, may challenge peremptorily four jurors upon the said panel, without showing any cause therefor, which shall be allowed by the court.

Four peremptory challenges. Whether there is one or more plaintiffs or defendants, only four peremptory challenges to the jury on either side are allowable. Bryan v. Harrison, 76-360.

See, for former practice, Battle's Digest, vol. 2, pp. 811-816.

Sec. 407. Separate trials. C. C. P., s. 230.

A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted.

Severance discretionary. It is within the sound discretion of the court, on motion of the defendants, or any of them, to allow severance and a separate trial as to each defendant, if thereby justice will be promoted. But when the court held that the defendants had a right to demand it, it was error, and the judgment rendered upon each holding must be reversed. Bryan v. Spivey, 106-95; State v. Smith, 24-402; State v. Gooch, 94-1006; State v. Oxendine, 107-783; Grant v. Burgwyn, 84-560.

Effect of order.-An order of severance is equivalent to dividing the action into several suits, with all the usual provisions for costs, etc., incident thereto. Bryan v. Spivey, 106-95.

Sec. 408. General and special verdicts defined. C. C. P., s. 232.

Algeneral verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment

to the court.

Definition. A general verdict is a finding in favor of one of the parties to an action; a special verdict finds the facts, but is not in favor of either party, until the court declares the law arising thereon. Morrison v. Watson, 95-479.

Where the jury respond affirmatively or negatively to the issues submitted to them, it is a general verdict, although there be several issues; when they state the facts, and leave the court to apply the law arising upon them, it is a special verdict. Porter v. Railroad, 97-66.

Verdict sufficient.- Where, in an action to set up a lost deed, the jury found that the defendant had not executed a deed for any part of the land, but did not specifically find that no deed was ever executed, the verdict was sufficiently responsive. Railroad v. Purifoy, 95-302.

The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment. Emry v. Railroad, 102-209.

A verdict that a deed was obtained by fraud and undue influence, is not inconsistent with the idea that it is constructive fraud only. Costen v. McDowell, 107-546.

Not essential to poll jury. that the jury be polled.

It is not essential to the validity of a verdict State v. Jones, 91-654.

Nor that counsel are present.—It is not essential to the validity of a verdict that counsel should be present at its rendition.

654; State v. Austin, 108-780.

State v. Jones, 91

School-Com

Special verdict.-A special verdict is not always required. mittee v. Kesler, 66-323.

A special verdict must find all the facts necessary to enable the court to give judgment. Hilliard v. Outlaw, 92-266.

If special verdict defective.-Where a special verdict is defective, a venire de novo will be awarded. State v. Bray, 89-480.

If a special verdict fails to find all the facts essential to a decision of the case, it is fatally defective, and a new trial must be awarded. State v. Oakley, 103-408; State v. Crump, 104-763.

Practice on return of special verdict. If the jury return a special verdict, it is the duty of the court to declare the law thereon and cause a verdict to be entered in accordance therewith. Then it should proceed to render judgment, and no appeal will lie until such judgment is pronounced: State v. Smith, 95-680.

A formal verdict in accordance with the opinion of the court must be entered upon a special verdict before judgment can be pronounced. State v. Morris, 104-837; State v. Moore, 107-770; State v. Nies, 107-820; State v. Monger, 107-771. These cases reviewed and practice settled that no formal verdict is necessary, but the court should pass judgment upon the facts found in the special verdict. State v. Ewing, 108-755.

Appeal only lies from judgment.-Where a special verdict is returned, no appeal lies until there has been a judgment entered on the verdict. State v. Nash, 97-514.

Sec. 409. When jury may render either a general or special verdict, and when judge may direct a special finding. C. C. P., s. 233.

In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff,

or the defendant, by his answer, claims a return thereof, the jury shall assess the value of the property if their verdict be in favor of the plaintiff; or, if they find in favor of the defendant, and that he is entitled to a return thereof, they may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict, in writing, upon all or any of the issues, and, in all cases, may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes.

Irregularity in formation of jury cured.-Irregularity in the formation of a jury is cured by the verdict. State v. Boon, 82-637; State v. Ward, 9-443.

Also cured by putting in answer or defence. State v. Matthews, 82-672. Papers handed to jury.-It is error for the court to hand to the jury (on their retirement) papers which have been read as evidence, if objection is made. Williams v. Thomas, 78-47; Outlaw v. Hurdle, 46-150; Watson v. Davis, 52-178; Burton v. Wilkes, 66-604.

Where papers were offered in evidence, but not read to the jury, it was proper to refuse leave to the jury to take them into the jury-room. Hannon v. Grizzard, 89-115.

Where the jury were allowed to take a certain paper with them to their consultation-room, it cannot be assigned as error if the appellant expressly agreed that they might do so. Angier v. Howard, 94-27.

It is not error to refuse to allow a deposition read upon the trial, to be taken into the jury-room, upon the request of only one of the jurors. Lafoon v. Shearin, 95-391.

See, for conduct and province of jury under former practice, Battle's Digest, vol. 2, pp. 810-817.

Instructions as to nature of verdict. In actions for the recovery of money only, or of specific real property, the jury may in their discretion render either a general or special verdict, but in all other cases the court may direct a special verdict, and it may instruct them, if they find a general verdict, to find upon particular questions of fact, material in the case, but which are not put in issue by the pleadings Porter v. Railroad, 97-66; Bean v. Railroad, 107-731; Commissioners v. Lash, 89-159.

The court has countenanced and approved the practice of defining, in the verdict, the extent of the plaintiff's interest in the land in controversy, either by metes and bounds, or as an undivided fractional interest. Allen v. Sallinger, 103-14.

Where it appears from the proof offered to show title, or is admitted on the trial, that a defendant who has confessed ouster by denying the plaintiff's title is, in reality, a tenant in common with the latter, it is the duty of the court to instruct the jury to ascertain and determine, by a specific finding, the undivided interest of the plaintiff, ard to assess his damages in proportion to such actual undivided interest. Gilchrist v. Middleton, 107-663.

In a civil action, when there is no conflict of evidence, the judge should direct the verdict to be entered. Purifoy v. Railroad, 108-100.

Instructions to find a special verdict.-The court has the power, under The Code, 409, to direct a special finding upon an issue in an action for an account and settlement of a trust fund, and so also in all other cases except where the suit is for "money only" or " specific real property." Commissioners v. Lash, 89–159.

Where verdict is inconsistent.-Where the verdict upon the several issues submitted is inconsistent, a new trial will be ordered. Mitchell v. Brown, 88-156; Bank v. Alexander, 84-30; Porter v. Railroad, 97-66; Puffer v. Lucas, 107-322.

The finding of a jury, in an action for damages for an assault, that the defendant acted in self-defence, renders a finding as to the amount of damages immaterial, and not inconsistent. Purnell v. Purnell, 89–42. If there be an irreconcilable conflict in the findings of the jury upon the issues submitted, or between the verdict and the judgment, a new trial will be awarded. Morrison v. Watson, 95-479.

Where immaterial issues are by consent submitted to the jury with others which are material, and it can be seen that the immaterial ones do not affect the proper ones, nor mislead the jury, the verdict will not be set aside, but judgment should be entered upon the finding on the material issues, though that upon the others is inconsistent. Gatling v. Boone, 101-61.

Where the plaintiff, in an action to recover land, demands judgment in his complaint for a tract containing twenty-five acres, and the following issue is submitted to the jury: "Is plaintiff the owner of the land described in the complaint?" to which the jury responded, "Yes: one-seventh of the Sandy Bottom tract, 160 acres": Held, that the verdict is contradictory and a new trial will be ordered. Allen v. Sallinger, 105-333.

Construction of verdict.-Where no issues are eliminated and the record states "the jury find all issues in favor of the plaintiff," the court will understand it to mean that all matters in controversy arising on the pleadings are found in favor of plaintiff. Rogers v. Clements, 92-81. Or a new trial may be granted. Bowen v. Whitaker, 92-367.

The verdict must be taken in connection with, and interpreted by, the issues, and when, by necessary implication, the answer to one issue disposes of the matter in controversy, it will not be set aside, although not so full as might be desirable. Railroad v. Purefoy, 95-302.

A verdict of a jury may be made intelligible and operative by a reference to a plat of a survey offered in evidence on the trial. Smith v. Fite, 98-517.

Conduct of jury.-The verdict of a jury cannot be impeached by one of its members. State v. Royal, 90-755; State v. McLeod, 8-344; State v. Smallwood, 78-560; State v. Brittain, 89-481; Lafoon v. Shearin, 95–391.

Evidence to impeach a verdict for the misconduct of a jury must come from other sources than the jury itself. Jones v. Parker, 97-33; Johnson v. Allen, 100-131; State v. Bailey, 100-528.

A verdict will not be set aside upon vague and indefinite proof that some of the jurors were improperly approached and spoken to about the case, especially where it is not alleged that the action of the jurors so approached was influenced thereby. State v. Harper, 101-761; State v. Gould, 90-658.

Where it appeared that, after several ballots in the jury-room, a proposition was made and assented to that the verdict of a majority of the jurors should be the verdict to be returned, and, another ballot being taken, some of the jurors adhered to their previous opinions, and thereupon the deliberations were continued and resulted in a conviction, and the trial judge found the fact that the verdict was the voluntary action of the jurors, the defendant was not entitled to a new trial. State v. Harper, 101-761.

The presence of the officer in charge of the jury at their deliberations, and the fact that the jury were allowed to separate, but still under the charge of officers of the court, will not vitiate a verdict in the absence of any proof or suggestion of improper conduct on the part of the jurors, or the exercise of undue influence over them. Ibid.

Submission of issues to a jury.-Submitting to a jury issues upon points. not necessarily decisive of the case, and requiring verdicts neither general nor special, in form, is irregular. Henry v. Rich, 64–379.

The court can, in its discretion, submit issues compounded of law and fact to the jury under instructions as to law, or it may direct the jury to find the facts, and reserve the right to pronounce the judgment of the law. Grant v. Bell, 87-34.

Where a party has voluntarily submitted a question to be tried by a jury, which was properly triable by the court, but, upon evidence and under instructions not excepted to, he cannot afterwards be heard to raise the objection. Leggett v. Leggett, 88-108.

In ejectment, the issue as to damages should be submitted along with the main issue, with instructions to the jury that if they find the main issue in favor of defendant, not to consider the issue as to damages. Cheek v. Watson, 90-302.

The question of negligence having already been settled by the verdict of the jury, the question of substantial damages may be submitted by the court. Brunhild v. Potter, 107-415.

See cases cited under 22 393, 395, 398, ante.

Tender of deed after verdict.-In an action for specific performance, where the defendant denies the equity of the plaintiff, after a trial upon the issues joined, a tender of deed and demand for payment of purchasemoney comes too late. Houston v. Sledge, 101-640.

Recalling jury for instructions. Whether the jury, having retired under instructions to which there was no exception, shall be recalled for further directions, is within the discretion of the court, and not reviewable. Scott v. Green, 89-278; Lafoon v. Shearin, 95-391.

Or to re-open case for further argument or evidence. Pain v. Pain, So-322; Olive v. Olive, 95-485.

Error in charge cured by verdict.-A new trial will not be granted, if the verdict is a proper one, although it may have been returned in obedience to an erroneous instruction from the court. Rountree v. Britt, 94-104.

In action for slander. -Where, in an action for slandering the plaintiff, the words set out in the complaint are ambiguous, but admit of a slander

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